The balancing exercise between criminal acts and trumped up police facts

By National Criminal Lawyers

Being charged with a criminal or traffic offence can be a daunting experience. It could be the first time you have ever been in trouble with the law. What is more stressful is when the Police allege
that you did something you did not do or trump up the allegation to a point where it makes us stressed and confused.

It is often said that they are three (3) truths when it comes to a police allegation – what the “police” say is the truth, what the “client” says is the truth and what the “actual” truth is.

Do police sometimes add unnecessary facts in the facts sheet?

Have you been charged with a crime, but the fact sheet has unnecessary or erroneous facts? Here at National Criminal Lawyers (NCL) with our combined 25 years of criminal law experience we have seen thousands of Police Fact sheets.

What we know is that the Police officers who draft these documents (documents that can ruin a person whole life) are almost always not trained lawyers or experts in terms of the practice of law. This means that oftentimes fact sheets are full of certain mistruths, or there are relevant things missing, or worse still there are what are known as aggravating allegations which go above and beyond what is the truth, and/or the crime as charged.

Suffice to say it is for this reason we as criminal lawyers hardly ever read the police fact sheet (apart from the charge part and section). In fact, if you come see us, at times, we will deliberately not read the facts sheet (other than the charge section) and utter words similar to “well I know that’s what the police allege but before I read their version you tell me yours”

So what does the law say about erroneous fact sheets?

The major case law that applies to erroneous fact sheets is what is known as the De Simoni Principle.

The facts of Mr De Simoni are as follows:

Mr De Simoni had a bad drug habit. By all standards he was an “addict”. To support his habit, he broke into empty houses and stole property. One day he broke into what he believed was an empty house and was surprised in the dark by the occupant. He believed the occupant was a young man and he was in danger. He defended himself and only afterward did he find out the occupant was an elderly lady.

Mr De Simoni showed immediate remorse.

He helped the elderly lady into a chair, apologised to her and brought her a glass of water and a telephone so she could call someone to assist her before he fled the scene. Mr De Simoni was subsequently charged and pleaded guilty to Robbery. He did not nor was he asked to face any other charge such as “Aggravated Robbery” (A more serious type of robbery involving violence in the robbery).

However, the Fact Sheet alleged that he had 'wounded' the victim which amounted to a more serious offence of Robbery in Circumstances of Aggravation. The trial court took the wounding into account and effectively sentenced Mr De Simoni for the more serious offence even though he had not been charged with it. The High Court found that the trial court had erred and should not have accepted the Agreed Facts that amounted to a more serious offence than what had been charged.

What is the effect of the De Simoni Case?

The main principle stated by the High Court was that an offender can only be sentenced for the offence of which he is convicted. Seeing Robbery with wounding was not what he plead to, and the Court should have dismissed any police attempts to state in the fact sheet more than he was alleged to have committed.

At National Criminal Lawyers you can rest assured be confident that we have seen things like this on a daily basis. We believe the police do the job they must do (mostly representing law abiding community) and although sometimes they are tunnel visioned and bias we do respect them as an adversary.

However, we to must do our job which oftentimes means we represent some people who are considered by some as the least respected in the community. Here at National Criminal lawyers however we do this with pride as we feel representing those considered to be least respected is a matter of defending human rights. In this sense we are experts at balancing the beam to be in the most favorable position for our clients as possible.

For all the above reasons, if you are charged with a criminal offence and no matter how bad the Facts Sheet are we will make sure that no unnecessary or irrelevant comments are made by the police which do not form part of the charge alleged.

NCL is the only Criminal Law firms who offers a specifically tailored package wherein we offer a unique set of 4 options as follows (or a culmination and combination of the following);

1. Instruct us to negotiate with prosecutors/police (plea/facts negotiation);
2. Instruct us to Plead Not Guilty and go to hearing/trial;
3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing); and/or
4. Plead guilty with full acceptance of the facts (even if those facts are not agreed)

For a FREE consultation with one of our Senior Lawyers, please contact us on 02 9893 1889.


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